TAMPA - At more than three hours, it was the longest sentencing hearing anyone could recall for a single defendant convicted of transporting obscene materials.
This morning, U.S. District Judge Susan G. Bucklew sentencd director Paul Little, aka Max Hardcore, to 46 months in federal prison for distributing obscene material through the mail and the Internet. Little was fined a total of $7,500 and his company was fined a total of $75,000.
AVN spoke to defense attorney H. Louis Sirkin about the proceedings.
"The judge took a recess before she imposed sentence," Sirkin told AVN. "And she came back and relieved all of us pretty quickly. She said right away that she believed a sentence within the guidelines was appropriate, so we knew right away where she was starting from."
Federal sentencing guidelines are a complicated affair, and thanks to the Supreme Court decision four years ago in U.S. v. Booker, they're now "advisory" rather than mandatory - but they're all about the numbers, and violations which have nothing to do with the charges immediately before the court can nonetheless affect a sentencing's bottom line.
"The judge followed the advisory guidelines, found that it was a level 22, and gave him the minimum which is 46 months because he was in category 2," Sirkin explained. "When the mailing [of the "obscene" material] was done, he was on probation for a DUI, so he got three criminal history points because of that, which put him into category 2 [a "second offender"] of the sentencing guidelines, which put him in a sentencing range of 46 to 57 months, and if he had been in category 1, he would have been in a guideline range of 41 to 47 months."
"She did impose a fine substantially, and I mean overwhelmingly, below the corporate guidelines for the corporation," Sirkin continued. "The corporate guideline fine range was $1.2 million to $2.4 million; she imposed a $75,000 fine on the corporation, and she imposed the minimum fine on Max of $7,500. The only thing that she did, she ordered the fines to be paid immediately, and I don't know what his ability to pay that is."
Sirkin's partner, Jennifer Kinsley, noted that Little and his corporation would also have to pay $5,000 in "special assessments," fees which are standard in every criminal case.
Perhaps more importantly, Little will be allowed to self-surrender, probably to Lompoc Federal Correctional Complex, which is about 175 miles north of Los Angeles, when he receives notice to do so from the U.S. Marshals Service. The notice is expected to take four to six weeks to arrive.
"She allowed him self-surrender, which was over the opposition of the government," Sirkin noted. "The probation department said that during the pretrial assessment, he had done everything that was asked of him, and California pretrial confirmed that, so she saw no reason not to allow him to do self-surrender."
"She allowed him, since he's increased his drinking a little bit because of the stress of this, and he indicated that both his dad and his brother died of cirrhosis of the liver, she did order, if the Bureau of Prisons finds it appropriate, that he be allowed to go through an alcohol treatment program, and if that's the case, it could knock some time off," Sirkin added. "They still get 54 days a year of 'good time' after the first year. The rule of thumb is that you serve 85% of your time, which in Max's case is about 39-1/2 months."
The fine was actually a surprise to observers, because the government had argued that as far as the revenue that Little had earned from the sale of the five "obscene" movies and the five "obscene" trailers posted to his Website, the judge should take into account Max World's entire stock of charged DVDs, rather than just the number of DVDs of those titles that Jaded Video, Max World's distributor, had sold, and that the entire revenues derived from subscriptions to Max World's various Websites should be counted as well. But Judge Bucklew rejected that argument.
"She accepted the probation officer's recommendation that the financial, pecuniary gain be $40,000, which made it a six-level increase, and we did fight that it should only have been five," Sirkin explained. "She rejected the government's position that it should have been all the revenue to join the website, to subscribe to the Website, and she said there was no way to determine whether anybody had viewed any of those movies or trailers that were ultimately found to be obscene; therefore, that wouldn't be fair. But she did include all the sales that the government was able to prove or to show of the five movies that had been mail-ordered, which equaled $40,000."
"I tried to say, look, if you take the position the government is taking or that the probation department is taking," Sirkin continued, "that means that if I'm Barnes & Noble and I sell Lady Chatterley's Lover or Fanny Hill [two novels which had been found obscene in the mid-20th century] and it's determined to be obscene, that means then that you should go across the country and look at all the sales that that book has sold at all the Barnes & Noble outlets and put them into a guideline level, and the pecuniary gain would go through the roof, and that would amount to a prior restraint, because nobody then would want to carry anything that is at all even questionable anywhere. She rejected the U.S. attorney's position on that."
The fact that the Internet was involved in the crime, and that some of his revenues were derived from his Websites, added points to the base guideline numbers.
"He's category 2," Sirkin explained, "and no matter what way you look at it, unless you do 'acceptance of responsibility' [for the crimes committed], when you're dealing with the Internet, even with the most minute of pecuniary gain, you're going to start at [level] 15, and if your use of the Internet in any way figures into your crime, you're going to get 2 [additional levels]; that takes you to a 17. And if you've got any type of activity like spanking, slapping and so on, you're liable to get hit with 'sadomasochism,' which takes you to a 21. So even if you've got acceptance of responsibility, that puts you at a 19, which I believe is 21 to 29 months."
Sirkin believes that the defense team - Sirkin, Kinsley, Jeffrey Douglas, Dan Aaronson and Jamie Benjamin - has several very appealable issues, not the least of which is that, despite the jury's verdict, the fact remains that neither Little nor Max World mailed any movies to the Tampa area; that it was Jaded Video that did the fulfillment, and there was testimony at trial that the mailing to Tampa may have been against Little's explicit orders.
There were also several aspects of the case which Sirkin thinks should give other adult producers pause.
"The reason it's as high as 46 months is because of the criminal history," Sirkin noted. "DUIs come back to haunt you, and people have to be aware of all of that. Jamie did argue that there should be a variance downward because the criminal history overstated his real history, but the judge didn't buy that. But we reserved our right to appeal things with the sentencing. Now, in the event that the mail order counts would be thrown out, his guideline level would go down. His criminal history level would go down to 1, and secondly, the pecuniary gain would go down to 15. That would take him down to a level 21; it would knock off maybe as much as 16 to 20 months, and there is a real strong possibility that because the dollar figure came from the purchase of the mailed five movies, so if the mail order counts, which we have a very good legal issue involved with, were reversed, his sentencing guideline level would go down, and he would be subject to a much lighter sentence."
Overall, however, Sirkin is pleased that he and his team members were able to accomplish as good an outcome as they did.
"I think that ultimately the way this thing worked out," he said, "to go to trial and get the minimum without an acceptance of responsibility and all that kind of stuff, or agreeing to just immediately shut down a business, I think it's incredible the sentence we ultimately came out with, so we put a lot of guts into it, and certainly, I think anybody else in the industry now who would get in trouble now have a great comparable to say why the minimum should be imposed."
It's just this sort of synchronistic accomplishment, which may be of benefit to others who get busted for arguably tamer material, that leads Sirkin to make the point that even the federal trial of one producer can and probably will affect future cases across the country - and that therefore, Little deserves the industry's monetary as well as philosophical support.
"I really think it's an important message to get out there," he said. "I say it over and over and over again, but it really does matter, and this lack of support from the industry gets to be a frustrating situation for us guys out there on the forefront."
Sirkin expects to file his Notice of Appeal within 10 days, and he expects that Judge Bucklew will allow Little to remain free while it is pending.
"The judge was very, very patient today," Sirkin noted, "and she listened to Paul's statement. She showed some degree of compassion; she was not nasty at all. And the two U.S. Attorneys, Edward McAndrew and Lisamarie Freitas, acted very professionally."
"I think there was some interesting language that came out of McAndrew that the adult industry might want to see," Sirkin said, returning to his earlier point, "although on the other hand, it's still going to make some people think, 'Well, I'm different; I'm not like Max, and I fit that other category that they're not going to do anything about,' but they never say specifically what they will leave alone and what they won't leave alone. That changes with the wind."
